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TMI Blog2009 (1) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... ions in the show cause notice. Then, such appeals are not maintainable - E/313/2008 - 62/2009 - Dated:- 20-1-2009 - S/Shri T.K. Jayaraman, Member (T) and M.V. Ravindran, Member (J) REPRESENTED BY : Shri G.P. Sastry, Advocate, for the Appellant. Ms. Joy Kumari Chander, JCDR, for the Respondent. [Order per : M.V. Ravindran, Member (J)]. - This appeal is directed against Order-in-Appeal No. 13/2008 (V-I)CE dated 13-3-2008. 2. The relevant facts that arise for consideration are the appellant herein are manufacturers of VP Sugar and Molasses falling under Chapter Heading No 1701.31/1701.39 of Central Excise Tariff Act, 1985 and are discharging the appropriate duty liability. The appellant herein had taken Cenvat credit to the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hyderabad v. Nava Bharat Ferro Alloys Ltd. - 2004 (166) E.L.T. 72 (Tri.-Bang.) and Jindal Vijayanagar Steels Ltd. v. CCE, Belgaum - 2005 (191) E.L.T. 459 (Tri.-Bang.). 4. The learned JCDR on the other hand would submit that the credit availment of the appellant is on the items which are used for the manufacture of capital goods (storage tanks), as the said storage tanks are not excisable goods by virtue of being embedded to earth, the appellant could not have availed the Cenvat credit on the inputs used in the fabrication of such storage tanks. It is her submission that items in question are not capital goods as they are not figuring under the definition of 'capital goods'. It is also her submission that even Explanation 2 to Rule 2(k) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the issue is now also covered by the decision of this Bench of the Tribunal in the case of Nava Bharat Ferro Alloys Ltd. (supra). We reproduce the ratio which is as under : "4. After hearing both sides and considering the submissions, it is found - (a) The only ground taken in the show cause notice was that the items on which credit was taken have been used to assemble an immovable property and therefore the credit of duty is not available. There was no other ground set out in the show cause notice to deny the Modvat credit. When the Commissioner in the impugned order has held that the power plant was an excisable commodity and therefore the Modvat credit is not deniable. Then, in the present appeal, filed by the Revenue when ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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